Malaysian Bar fails in bid to challenge Terrirudin's appointment to JAC

 

The Kuala Lumpur High Court has dismissed the Malaysian Bar’s leave application to challenge Federal Court judge Ahmad Terrirudin Salleh’s appointment to the Judicial Appointments Committee (JAC).

Judge Norliza Othman, in her decision today, held that Terrirudin’s (above) appointment was made in accordance with the law, as per Section 5(1)(e) of the Judicial Appointments Commission Act 2009, and that the Bar has no locus standi to challenge it.

Section 5(1)(e) touches on the appointment of a Federal Court judge to JAC by the prime minister.

“Section 5(1)(e) is plain. It specifies the category of person - a Federal Court judge - and the appointing authority, which was the prime minister, and stops there.

“The central premise is that Section 5(1)(e) must be read purposively such that implied criteria are unarguable.

“The literal approach governs; the provision requires only an existing Federal Court judge appointed by the prime minister (which) both are satisfied, and the court cannot read in criteria Parliament did not enact,” she said.

The court held that nothing in Terrirudin’s appointment was illogical or contrary to accepted moral standards that no sensible decision-maker could have reached it.

Norliza added that JAC merely recommends candidates for judicial appointment, while the power of appointment lies with the Yang di-Pertuan Agong on the advice of the prime minister under Article  122B of the Federal Constitution.

Article 122B of the Constitution governs the appointment of top judges, including the chief justice, the Court of Appeal president, chief judges of the High Courts, and other superior court judges.

The bar filed the application via Messrs Clinton Tan on Feb 12 this year, naming Terrirudin, Prime Minister Anwar Ibrahim, the JAC, and the government as the first to fourth respondents.

The bar, in its application, sought several declarations from the court, including a mandamus order from the court to compel Anwar to exercise the prerogative of appointing a JAC member in accordance with the law.

They also wanted the court to make an order of quo warranto to compel Terrirudin to show cause and disclose the basis of his appointment to the JAC instead of other members of the judiciary, as well as the same order to Anwar, the JAC, and the government for the appointment.

Terrirudin’s appointment

Last November, Anwar appointed Terrirudin under the quota of five executive-picked members of the JAC, replacing former Federal Court judge Zabariah Yusof (below), who retired in October.

Under that quota, the prime minister can appoint one Federal Court judge and four eminent persons who are not members of the executive or other public service.

The other four members of the JAC, who are automatically appointed by virtue of their position in the judiciary, are the chief justice, who is also the commission’s chairperson, the Court of Appeal president, and the two chief judges representing East and West Malaysia.

The move was touted as a departure from the longstanding practice of assigning that slot to a senior Federal Court judge.

In terms of seniority, the top Federal Court judge is Rhodzariah Bujang, who joined the top court in March 2020, while Terrirudin joined in November 2024.

Chief Justice Wan Ahmad Farid Wan Salleh said in December that the appointment was the prime minister’s discretion as per the law, without needing to consult anyone, including himself, and the decision cannot be challenged.

JAC controversy

The JAC selects persons who merit appointment as judges of the superior court for the prime minister’s consideration, among other roles.

It was the subject of intense scrutiny and controversy over allegations that a Federal Court judge was accused of judicial interference during a commission meeting in May.

Queries by Malaysiakini to the judge in June led to a police investigation after the judge ordered an aide to lodge a police report.

Later in July, the purported minutes of the meeting leaked on social media.

This led to a full-blown judicial scandal, with fears that the executive was trying to exert control over the judiciary, with the judge in question allegedly poised to become chief judge of Malaya and then the chief justice. - Mkini